Recent problems concerning the institution of trusteeship were discussed in Tepav In the meeting, in which Assoc. Prof. Dr. Devrim Güngör was the speaker, regulations regarding the trustee institution and the problems stemming from its implementation have been covered, within the framework of the relevant legislation.

Ankara- “ Recent Problems of the Trusteeship in the Turkish Judicial System” meeting organized by Tepav Legal Studies Center was held at Tepav on Friday, June 24^th .

In the meeting, in which Assoc.Prof.Dr Devrim Güngör at Ankara University Faculty of Law was the speaker, regulations regarding the trustee institution and the problems deriving from its implementation have been discussed, within the framework of the relevant legislation. In addition, the provision, which altered the regulation of the Code of Criminal Procedure concerning the appointment a trustee for the administration of a firm, has been evaluated.

Güngör opened his speech by explanining the existing regulation in the Article 133 of the Code of Criminal Procedure. Article 133 states that “In cases where there are strong grounds of suspicion that the crime is being committed within the activities of a firm and it is necessary for revealing the factual truth, the judge or the court is entitled to appoint a trustee for the administration of the firm with the aim of running the business of the firm, for the duration of an investigation or prosecution”. Güngör stated that according to this article, the powers of the firm’s board of administration are transferred to the trustee as a precautionary measure during the investigation or prosecution.

Güngör stated that the purpose of the criminal procedure law is to reach the truth by legal means, as well as to take precautionary measures which are necessary to investigate the alleged crime properly. Güngor remarked that according to the current regulation, application of the legal measures, which aim to reveal the material truth, particularly during the prosecution process is against the nature of protective measures. For, at the beginning of the prosecution process all evidence are supposed to be gathered. Therefore, pursuing or applying such measure for the first time would not have any legal grounds.

Güngör also underlined that the clause of “is being committed” in the provision requires that this  measure is applicable only for crimes in progress and successive offenses.

Güngör continued his speech by comparing similar measures in the Code of Crimanal Procedure. He also drew attention to the special regulation under Article 128 relating the seizure of immovable goods, rights and credits,  also allows to the seizure of shares at the firm where s/he is a shareholder. He suggested that this mechanism can be used instead of the instituton of trustee, but in practice the latter is preferred because of the fact that there are significiant differences regarding the conditions of application of these measures, in Article 128 and 133.

Güngör then asked the question of whether there is a need for Article 133. As a matter of fact, this measure was not included in the Former Code of Criminal Procedure and the referring legislation of this Code.

In the meeting, the draft regulations and controversial issues were discussed under three headings.

These headings are:

1. The scope of the authority of trustees will be extended, as the partnership interests or stock management of seized firms will also be transferred to the trustees,
2. The scope of the crimes which are subject of the appointment of trustees to a firm will be extended (this clause was withdrawn with a motion during its discussion at the Turkish Grand National Assembly),
3. Claim for damages cannot be directly demanded from the trustees, such lawsuits can be opened against the state and the state will recourse to the trustees who misuse their authority,

In the meeting, regarding the issue of trustee’s liabilities were also mentioned. Güngör evaluated that since the Court is entitled to appoint a trustee for the administration of the firm,  trustees should be deemed as public servants. Therefore, arranging their criminal and civil liabilities similat as other public servants should not create a problem in Turkish Legal System.

Güngör emphasized that the implemented measure within the framework of the trustee institution should be terminated as soon as possible. If it takes a long time, it will be incompatible with the nature of this mesaure which is defined as a temporary means. If time is extended it publicly creates the impression that the ownership of the firm has been transferred to the State and that even it has been confiscated. Güngör pointed out that such a consequence would harm the interests of the firm heavily.

Güngör stated that trustees should avoid actions which lead to permanent effects over the main field of activity of the firm. Furthermore, their authority should be kept limited to the mandatory operations which should be executed in the short run. Otherwise, the damages could not be compensated easily.

Director of TEPAV Legal Studies Center, Prof.Dr. Levent Gönenç, in his evaluation,  pointed out that there is also a constitutional dimension of the new regulation. Firstly, he stated that the disposition of firm assets may infringe the right to property. Secondly, expanding the scope of such precautionary measures might discourage private entrepreneurship, which is guaranteed by the Constitution. Furthermore, he underlined that instead of utilizing other ‘convenient’ and ‘soft’ measures in the existing Code of Criminal Procedure, application of such a hard measure is against the principle of “proportionality” which is one of the pillars of the limitation regime of fundamental rights and freedoms in the Constitution.

The meeting ended with the questions and comments regarding trusteeship.